The Indiana Supreme Court recently clarified the standard for when defendants in mortgage foreclosure actions are entitled to have a jury, rather than a judge, consider their defenses and counterclaims. Lucas v. U.S. Bank, N.A., 953 N.E.2d 457 (Ind. 2011). Plaintiff bank filed an action against two borrowers to enforce the terms of a promissory note and to foreclose the mortgage that secured the note. The borrowers asserted various statutory and common law defenses and counterclaims and filed a third-party complaint against the loan servicer, asserting similar common law and statutory claims. The borrowers also filed a demand for a jury trial “on all issues deemed so triable.” Read More ›

In Geneva-Roth Capital, Inc. v. Edwards, the Indiana Court of Appeals considered an issue of first impression in Indiana: when the parties to an arbitration agreement select a specific arbitrator, and that arbitrator is no longer available, does the agreement fail for impossibility? Cause No. 49A02–1101–PL–43, 2011 WL 5566216 (Ind. Ct. App. Nov. 16, 2011). In that case, the defendant lender extended a small, short-term loan to the plaintiff borrower. The loan agreement included an arbitration provision, which provided: Read More ›

Unfortunately, lenders in West Virginia are routinely faced with lawsuits alleging that, in essence, they may not foreclose on a property before offering a loan modification. Borrowers’ counsel generally alleges breach of contract based upon an “implied contractual duty to act in good faith.” This allegation is routinely based upon an argument that lenders have discretion under their Deed of Trust to modify a loan and must exercise that discretion in good faith by offering modifications rather than foreclosing. Read More ›

Bishop v. Quicken Loans, Inc., 2010 WL 3522128 (S.D.W.Va.). In
December 2006, Originator Defendant approached Plaintiffs relative to
refinancing their mortgage. Based on an alleged inflated appraisal of
their home, Plaintiffs obtained an Option Adjustable Rate Mortgage (the
“ARM Note”) in the amount of $133,600. Originator Defendant did not
inform Plaintiffs that the interest accruing on the ARM Note would
exceed their minimum scheduled payments, such that their loan balance
might increase from month to month. Read More ›

In In re Kohls, 2007 LEXIS 76 (Bankr. N.D.W.Va. 2007), the
debtor filed this adversary proceeding against the Bank to cancel
indebtedness and recover damages related to a $34,864 loan that the Bank
made to the Debtor on the grounds that the loan was unconscionable at
the time it was executed in violation of W. Va. Code § 46A-2-121. Read More ›

In Reger Development, LLC v. National City Bank, National City advanced Reger a line of credit fund potential development opportunities. 592 F.3d 759 (7th Cir. 2010). The contract documents stated that Reger would pay the loan in full immediately upon National City’s demand. Read More ›

In recent months, the Office of Thrift Supervision (“OTS”) has indicated
that it intends to take an increasingly active role in regulating the
business practices of banking institutions under its regulatory
authority. On August 6, 2007, the OTS announced the issuance of an
Advance Notice of Proposed Rulemaking (“ANPR”) seeking public comment
..... Read More ›

Until relatively recently, banks have not been frequent targets under
state or federal unfair or deceptive trade practice laws. During the
last decade, however, this has started to change and lawsuits against
banks have been steadily on the rise. Read More ›

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Courtney Rogers Perrin practices in the Nashville office as a member of the Firm’s Electronic Payments and Blockchain practice groups. She assists clients with regulatory compliance, contract negotiations, acquisitions and fund formation relating to credit card processing and fintech enterprises, including smart contracts and virtual currency matters.